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Big Saturday Read: Critical Review of Constitutional Amendment No. 2 (Part 3)

February 9, 2020

 

Introduction

 

This is the third part of the critical review of proposals by the government to amend the Constitution.

 

The first part provided the general context of the debate concerning the proposed amendments. It presented the arguments usually advanced for amendment the constitution and the counter-arguments for an aversion to formal amendment procedure. Pro-amendment advocates accuse their opponents of having what constitutional scholar Vicki Jackson called “amendophobia” – an irrational fear of amendments while anti-amendment advocates accuse their rivals of “amendmentitis” – an irrational urge to change the constitution at any given opportunity. 

 

In Part 1, I concluded that now that the Constitutional Bill has been published, the fundamental task is to do a critical and dispassionate review of the proposed amendments to discover the true intent behind each of them and offer alternatives where necessary. 

 

The second part of the critical review considered amendments to three areas: removal of the presidential running mates’ provisions; changes to the appointment and retirement procedures for judges and the Prosecutor General and changes to the role of Parliament over international agreements that impose financial obligations upon the government. I explained how these proposed changes generally concentrate powers in the hands of the President, weakening other arms of the state. 

 

The latest and final instalment in this critical review, I examine proposed amendments to the marking of electoral boundaries, devolution, the representation of women and youths in Parliament; the introduction of the Public Protector and the increase in the number of non-MPs that may be appointed to Cabinet. These proposals are presented as corrections of the current Constitution, either by removing what has been found not to work or by filling gaps. It is important however to apply greater scrutiny to assess their potential effect and consequences.        

Delimitation: marking electoral boundaries

 

As stated in the Bill, Clause 12 “de-couples ZEC’s delimitation function from the population census”. This simply means the timing of marking electoral boundaries will no longer be tied to the population census, which is held every ten years. Section 161 of the Constitution, which deals with the marking of electoral boundaries currently provides that this exercise is linked to data provided by the population census. It requires the marking of boundaries to be done “as soon as possible after a population census”. These words will now be removed and it is important to critically assess the impact of this change.

 

The government has not given a clear or persuasive reason for de-linking the timing of marking electoral boundaries from the population census. However, the likely reason is that the government thinks there is no synchronization between the population census and the delimitation process. The census has always been carried out every 10 years, the last of which was in 2012. However, there was no delimitation exercise to mark electoral boundaries following that census. The last delimitation was carried out before the 2008 elections. The marking of electoral boundaries could have been one of the transitional measures before the 2013 elections, soon after the adoption of the new Constitution but ZANU PF was in an unnecessary rush to have those elections. There was no delimitation exercise before the 2018 elections a clear repudiation of THE Zimbabwe Electoral Commission’s mandate. 

 

The data from 2012 is arguably no longer representative of the population to provide accurate boundaries for the next elections due in 2023. The next census is in 2022, just a year before that election. The Zimbabwe Electoral Commission, which has the mandate to mark electoral boundaries wants to carry out the exercise now, without updated census data. The proposed amendment is, therefore, a quick-fix to free ZEC from the constitutional obligation to use the latest census data. Is that a worthy reason to amend the Constitution? 

 

The solution, in my opinion, is not to de-link the marking of electoral boundaries from the population census. There are good democratic reasons why the marking of electoral boundaries has always been linked to the latest census data and not just to registered voters. An MP represents more than the people who are registered to vote or those who voted for him. In fact, in a country with an overwhelmingly young population, the majority of people in a constituency may not even be eligible to vote. De-linking constituency boundaries from the census is a fundamental change to the rules of democratic representation in our political community. Even if it is possible, there is a need for sound policy debate before making such a drastic change. 

 

The alternative to this proposal is to change the timing of the population census and move it forward. Unlike the marking of electoral boundaries which is a constitutional issue, the timing of the population census is governed by ordinary legislation. Between the two, it is far better to change the legislation governing the timing of the population census. The change will enable the marking of electoral boundaries to be done well in advance of the 2023 elections. 

 

From a governance perspective, those changes highlight the fundamental role of indicators as a technology of governance. The change from using the population census to voter registration statistics would represent a fundamental leap in the use of indicators. This is because the population census data is a different indicator from voter registration data. The ZEC is the generator of voter registration data indicators while population data is conducted by a different body. There is a lot of politics of contestation in the generation of data. Giving ZEC the power to generate data indicators for the marking of boundaries would remove the checks and balances that currently exist where population data is generated by a different body. 

 

Indeed, the exercise of generating data indicators and the marking of boundaries must be watched with vigilance. It is during the process of marking electoral boundaries that the pre-election rigging technique of gerrymandering takes place. To gerrymander is to manipulate electoral boundaries of constituencies to favour a particular party over its competitors. The de-linking of the delimitation exercise from the population census could be an easy route towards gerrymandering. The rural-urban divide in population and voter registration data needs careful scientific scrutiny. Are the numbers of people attributed to rural and urban areas a true and accurate reflection of population distribution in Zimbabwe? This is something that the opposition parties and civil society have taken for granted but it may be necessary to undertake a scientific review of this data.  

 

Devolution: Removing mayors of Harare and Bulawayo as chairpersons of metropolitan provinces

 

The Bill contains proposals to change some aspects of the devolution model. This is done under the auspices of correcting the existing model. The proposed amendments seek to merge provisions applying to provincial and metropolitan councils, the latter two being Harare and Bulawayo. At present, the mayors of the cities of Harare and Bulawayo were automatically deemed chairpersons of the metropolitan provinces. The amendments seek to change this so that the chairpersons of the metropolitan provinces will be elected just like chairpersons of provincial councils. These chairpersons are elected by members of the provincial councils.

 

At first sight, this looks like a move that will enhance democracy in the metropolitan councils. However, this has the potential to create conflicts in these major urban areas – with a chairperson leading a provincial council on one hand and the mayor and the urban councils on the other hand. The reason for the original design of the Constitution which made the mayors of Harare and Bulawayo take on the role of chairpersons of provincial councils was to prevent duplication of roles and potential conflicts if these roles were held by two different persons for virtually the same metropolitan areas. Now there will be two kingpins over the two major metropolitan areas – the mayor of Harare or Bulawayo and the chairpersons of Harare and Bulawayo. It’s probably more democratic but is this an efficient model? 

 

Devolution: Removing MPs from provincial and metropolitan councils

 

The second part of the amendment removes Members of Parliament from also sitting as members of provincial councils. The original design is that MPs from each province would also sit as members of provincial and metropolitan councils. The main rationale for this was cost-saving considerations. This was not a persuasive reason and it compromised the idea of devolution. If devolution is to be more genuine and effective, it is important to have separate persons sitting in and dedicated to provincial councils. MPs, on the other hand, would not only double-dip but they would probably prioritize their parliamentary duties over their role in provincial councils. 

 

The new design will have 10 provincial council members elected separately based on proportional representation. This will certainly increase opportunities for members of the political class, enabling those that miss out on seats in the national Parliament to settle for provincial council seats. 

 

The upside is that provincial councils can become useful training grounds for future members of Parliament. This is why it would be a good idea to have transitional provisions for a bigger quota for the youths and women in the provincial and metropolitan councils. Not only would these deliberately designed provisions give previously disadvantaged groups opportunities to gain experience in statecraft but it would also enhance their participation in politics. 

 

Indeed, in the same spirit of affirmative action to promote democratic representation, there ought to be a special provision for disabled persons in provincial and metropolitan councils. If these provisions exist for the national Parliament, there is no reason why they should not be there in respect of for provincial and metropolitan councils.  

 

Devolution: Why not use the opportunity to create a better devolution model?

 

One of the most disappointing and embarrassing aspects since 2013 is that the successive government has not implemented the devolution provisions. Chapter 14, which deals with devolution has largely been rendered redundant. The governments led by presidents Mugabe and Mnangagwa have engaged in tokenism; prioritizing appearance versus reality. In fact, by appointing provincial ministers, they have circumvented the devolution provisions and treated the Constitution with contempt. 

 

This is partly explained by the fact that ZANU PF was never receptive to or comfortable with the idea of devolution. It would get rid of it entirely and return to the era of provincial governors but it fears to enrage local communities, especially in the Matabeleland region where demands of devolution have been more pronounced on account of the history of marginalization since independence in 1980. It was therefore incredibly difficult to get devolution accepted in the original design of the Constitution and when it was, the end-product was, quite frankly, a messy compromise that is not fit for purpose. I think if the MDC had won political power, it would have embarked on changes to enhance the devolution model. 

 

This is why, although I am sympathetic to some of the proposed changes, a better approach is not for the government to undertake these piecemeal amendment measures but to have a serious consultation and dialogue regarding the issue of devolution. The model of devolution must be mandatory, lean and efficient. The proposed amendments do not provide a complete cure to the weaknesses of the current devolution model. This means there will be more amendments in the future. The Constitution will get cluttered, messy and incoherent. It’s better to have a single overhaul to settle on a model that works for the country. 

 

Extending the women’s parliamentary quota  

 

The proposed amendment seeks to extend the current provision which reserves a maximum quota of sixty (60) proportional representation seats for women in the National Assembly for a further two Parliaments. The current provisions provide for the women’s quota for a maximum of 2 Parliaments and are due to expire in 2023. The amendment would extend it to 2033. This might be presented as a correction of the constitution, having identified that the period given in the original document is inadequate. 

 

On the face of it, this extension appears to be a positive step which promotes women’s representation in Parliament and overall participation in politics. However, critics are concerned that instead of enhancing women’s role in politics, the extension of the quota 9ahead of more fundamental reform) perpetuates a system that keeps women at the margins of politics while purporting to be inclusive. To understand the nature of the problem, it is important to consider the purpose of the original provision, what it has achieved so far and why it is being extended. 

 

The women’s quota was presented as a measure to promote and advance the representation of women in Parliament but in reality, it was a compromise and a major climbdown from the demand for gender equality. The principle of gender quality would have required an equal representation of women and men in Parliament. However, such measures would have required some of the existing male MPs to give up their seats. To avoid this, the 60 additional seats were created, ensuring that women had some representation while the existing male MPs were unaffected. 

 

In reality, however, it was far from a win-win for women and men. It benefited male MPs more than it promoted women’s representation. This is because firstly, it was a repudiation of the principle of equal representation which had been overwhelmingly called for during the constitutional outreach exercise. The 60 proportional representation seats for women was a token concession to the demand for women’s representation.

 

Secondly, in a mixed parliamentary system where constituency-based MPs co-exist with proportional representation MPs, the former has more political capital and clout than the latter. Indeed, female MPs in Parliament courtesy of the quota have been given derogatory labels such as “Bacossi MPs” meaning they are beneficiaries of freebies, which undermines their legitimacy and authority. Besides, in politics, power is signified by having authority over a defined population and territory, which constituency MPs have but proportional representation MPs lack. Far from promoting women, the women’s quota has enhanced negative narratives.

 

Thirdly, continuation with an open system of contestation for parliamentary constituencies ignores the fact of historical advantages and gender-biases that have always given male MPs an edge over their female rivals in the field of politics. These historical disadvantages and cultural biases need the government to take positive action to level the ground in the field rather than creating token measures like the proportional representation seats. 

 

Just as the concession that the women’s quota was an acknowledgment of the historical inequality between men and women in Parliament, the proposed extension is also an acknowledgment that the measure has failed to work as originally envisaged. The question is whether this problem can be solved by extending the quota for 2 more parliaments. For the reasons already stated, I do not think there will be much progress in 2033. This means even though it might be genuine, the proposed extension is ill-thought out. What is needed is broader consultation with the key stakeholders and an independent and comprehensive performance review of the current quota. This process is far better than a top-down approach that the government is doing with this extension. 

   

If the government is serious about gender equality and promoting the role of women in politics, it should make a bold move of dividing constituency seats reserving half of them for women. It’s futile and pointless to continue with a flawed system because it will produce the same results. Critics of this model might argue that dividing seats would reduce democratic choice. However, this overlooks the fact that a good democratic system must consider historical and social context and it is legitimate to qualify it to meet progressive social objectives, in this case, gender equality and women’s participation in politics. The under-representation of women in politics is a historical legacy of systematic and undemocratic discrimination against women. The correction of this negative legacy is as noble a social objective as any which also fulfills the Constitution’s founding values and principles.

 

The Youth Quota

 

The proposed amendment seeks to reserve 10 proportional seats in the National Assembly for youths. This youth quota will work in the same way as the women’s quota described above. While it looks positive, it is just another act of political tokenism which increases the size of Parliament without enhancing the role of young people in politics. The same arguments advanced above apply with a similar effect to the youth quota. In any event, since there will just be one youth MP from each province, only the top candidate from the party that wins the province will be elected so the idea of a party-list is redundant. If it is to survive while promoting gender equality, the provision will have to be redrafted to ensure that it achieves that objective. There must be a better way to promote youths in politics than this piece of political tokenism.   

 

Additional Ministers from outside Parliament

 

There is a proposal to amend a constitutional provision that allows the President to appoint into cabinet persons who are not Members of Parliament. At present, the President can appoint up to 5 non-MPs to ministerial positions. The amendment will increase this to 7. 

 

In my opinion, the change is so minuscule that one wonders why it is being made at all rather than confronting the bigger governance question which is whether Cabinet ministers should be drawn from Parliament at all. The government is simply perpetuating the same hesitant approach to the fundamental question which was adopted as a compromise during the constitution-making process. There was, on one hand, a proposal that all Ministers should be appointed from outside Parliament. This would allow the President a wide pool from which to choose his Cabinet. It would also ensure a clear separation between Parliament and the Executive. A system of checks and balances would be maintained by giving Parliament the power to scrutinize and approve the President’s nominees to Cabinet. 

 

The other option was to have the Cabinet appointed from Parliament. This was the traditional approach used since independence. However, in recognition of the fact that the President needed more choice beyond the pool of elected MPs, the constitution allowed him to appoint up to 12 non-constituency MPs. However, this model was undemocratic because it gave the President and his party an unfair advantage over their electoral competitors. Since parliamentary elections were held separately from presidential elections, it meant the ruling party went into a parliamentary election already 12 MPs ahead of rivals courtesy of the President’s powers. 

 

One of the objects of the constitutional reform process that led to the 2013 Constitution was to remove this unfair advantage. However, this would restrict the President’s choices to Parliament. A compromise between those who favored the model where Cabinet was chosen from outside Parliament and those who preferred the model where they were chosen from Parliament was to allow the President to pick up to 5 Ministers who were not MPs. However, there was no parliamentary confirmation process for these 5 Ministers which removed checks and balances. Now the amendment seeks to extend this to 7 Ministers, still without any checks and balances.

 

In my opinion, a better approach would be a complete reconsideration of the model of appointing the Cabinet. There are at least 4 options:

 

  • all Ministers from outside Parliament but subject to parliamentary confirmation; 

  • all Ministers from Parliament; 

  • some Ministers from Parliament and some from outside Parliament but subject to parliamentary confirmation process; and  

  • some Ministers from Parliament and some from outside Parliament but without a parliamentary confirmation process

There is a stark difference between the first two options. The last two options are only different to the extent that parliament has a role in one and no role at all in the other. 

 

Public Protector

 

The proposed introduction of the Office of the Public Protector falls under the category of amendments to correct the Constitution by filling a gap that has been identified. According to the government narrative in the Bill, the Public Protector “will take over certain functions concerning public maladministration, etc, from the Zimbabwe Human Rights Commission”. 

 

On the face of it, there is nothing wrong with introducing a Public Protector. It was ZANU PF which opposed the proposal for a Public Protector or Ombudsman during negotiations for the current Constitution. In the end, the compromise was that the functions of the Public Protector were placed under the Zimbabwe Human Rights Commission. The proposed amendment to add what they initially rejected shows that the resistance was both unnecessary and unwise.

 

Nevertheless, while it is a good idea in principle to have the office of a Public Protector, it will be pointless unless it is accompanied by a real commitment to implementation. There is, at present, evidence of institutions that are constitutionally provided for but are either not implemented or their work is generally ignored. For example, the Constitution provides for the establishment of an Independent Complaints Commission to deal with public complaints against the misconduct of members of the security services. However, 7 years after the adoption of the Constitution, that institution has not been established. There is also the Office of the Auditor-General which audits the accounts of government and its entities. Each year it produces excellent reports which demonstrate wrongful and criminal conduct but it is routinely ignored. The Zimbabwe Human Rights Commission has been an independent body but its output is also similarly ignored. The Public Protector runs the risk of merely adding to the façade of institutions. 

 

The Public Protector will need to be well-resourced. If the ZHRC, some of whose functions the Public Protector will assume, has struggled to execute its full mandate it is not because it lacks the power or will to perform. It has actually been one of the few truly bold and courageous bodies in a difficult political environment in which human rights abuses by the State have been rampant. Its work has been affected by the fact the fact that it has been grossly under-resourced and now some of its functions are being taken away. The act of transferring part of its mandate to a new office of the Public Protector is not the magic wand that will enhance effectiveness. Rather, the Public Protector will only work effectively if it is properly resourced and independent. Zimbabwe is not short of institutions. What is lacking is the political will and commitment to make existing institutions work. 

 

In addition, the independence of the Public Protector is crucial. It is affected by many factors, including the manner of appointment. It should be a process that prohibits patronage and ensures the officeholder is not beholden to the appointing authority. To achieve this, there must be checks and balances in the appointment process. This is an area where the proposed amendments are found wanting. The proposed process of appointing the Public Protector places all the power in the hands of the President. This is consistent with the purpose of the Bill, which is to increasingly concentrate power in the hands of the President. The President only has to consult with the Judicial Service Commission and Parliament’s Committee on Standing Rules and Orders. There is no obligation upon him to follow the advice given by these bodies. The Public Protector will be the President’s person. W have already observed how the procedures for appointing judges of the 

 

A better approach is to get the Public Protector to be appointed in the same way that judges are appointed. This is an open and transparent process that involves public interviews and recommendations by the Judicial Service Commission. The only exception is that there is no need for a Public Protector to be a lawyer. The over-reliance on lawyers for roles that do not depend on legal skills alone is an unhelpful part of our Constitution. The qualities required for this role, such as integrity, independence and probity are not exclusive to lawyers. I would argue that the same applies to other key offices such as the Chairperson of the Zimbabwe Electoral Commission and the National Peace and Reconciliation Commission which are presently reserved for lawyers.  

 

Conclusion

 

Soon after the 2018 elections, Mnangagwa suggested that he wanted to create the Office of Leader of the Opposition, following the British model. To create this office and associated functions, the Constitution would have to be amended. This was offered as a way of resolving the political impasse that followed the disputed elections. The opposition party and its leader, Nelson Chamisa, were not receptive to this idea. The proposal appears to have suffered a still-birth. However, if Mnangagwa was genuine in his proposal, it did not have to depend on Chamisa and the MDC accepting it. He could have gone ahead and created the office.

 

Indeed, he could have used the current constitutional amendment process to make provision for that institution. However, it has become clear that the motivation for that proposal was to have a political quick-fix out of a tricky political situation rather than a genuine desire to create a long term political institution. It was never his idea but once that was probably foisted upon him by those who were trying to help him of a sticky political situation. If it had been an organic, home-grown proposal to create a political system that would accommodate the losing party after an election, Mnangagwa would have included it in Constitutional Amendment No. 2 and would have used the two-thirds majority to get it done.  

 

In conclusion, the proposed Constitutional Amendment No. 2 is largely about enhancing the power of the executive. Even the seemingly progressive reforms such as the introduction of the Public Protector are designed to place more power in the hands of the President while creating a façade. The extension of the Women’s Quota perpetuates the fraud of promoting women’s role in Parliament and politics when the government could take bolder and more progressive steps. The youth quota is another expensive tokenism which merely adds to the numbers in Parliament without doing much to enhance the role of youths in Parliament. The best way to solve the devolution puzzle is to have a thorough reassessment to come up with a mandatory model that works, not piecemeal changes. 

 

When all is said and done, the proposed constitutional amendments are a big diversion to keep the political community busy while the government is failing to deal with the deeper socio-economic challenges country afflicting the nation. An opportunity for genuine political reforms and for building consensus-based collaborative politics is being wasted. 

 

WaMagaisa

 

wamagaisa@me.com      

 

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